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October 4, 2007

The complications of federal sentencing and federalism

Three items I noticed this morning provide a great primer (and perhaps great fodder for scholarship) on the ways in which federalism issues can create complications for federal sentencing.

1.  The Sixth Circuit this morning in US v. Malone, No. 06-2099 (6th Cir. Oct. 4, 2007) (available here), reverses a defendant's below-guideline sentence holding "that a district court's consideration of a defendant's possible state court sentence as part of its sentencing calculus is improper and renders the resulting sentence unreasonable."

2.  The Boston Globe this morning has this interesting article discussing a brouhaha over a state judge vacating a prior state conviction in an effort to impact federal sentencing realities.  As the article explains, federal prosecutors "said they were stunned when [the defendant] showed up in federal court for his sentencing on cocaine charges later that afternoon and his lawyer announced that his old conviction had been dismissed, meaning that instead of facing 21 to 27 years in prison on the federal charges, he would face less than two years."

3.  On SSRN, Randy Barnett has this short piece entitled "Three Federalisms," which spotlights that the "importance of federalism are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding."  I wonder which versions of federalism would approve (or disapprove) of the Malone ruling and the happenings in Boston.

October 4, 2007 at 10:41 AM | Permalink


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Sullivan (in Boston) is really going too far. If a state court wants to vacate judicial a conviction it can. There is nothing he can do about it. He also knows that states do this quite a bit for various reasons. But he conveniently forgets to tell the papers this because his statements are more political than legal. (In fact, I have learned that it is better to not talk in public about local legal procedures, because it gets the “lock everyone up crows” acting nutty. But, the fact is that many state courts have adopted a nuanced approach to criminal justice which yes, involves not putting everyone in jail for life.)

His comments seem to say, “We want to put this guy in prison for as much time as possible. Our attempt to do this was based not on facts proven to a jury, but on prior convictions. Another jurisdiction has a different view of such prior convictions. We think this is unfair.”

Posted by: S.cotus | Oct 4, 2007 10:56:37 AM

The federal prosecutors in Boston are all worked up because they might not be able to throw away a defendant who did not cooperate for 21-27 years. They say what the state judge did "calls into question the integrity of judicial proceedings." Well, the conduct of the federal prosecutors does exactly that, and the state court merely acted to remedy -- what would be if the feds had their way -- an injustice.

Posted by: DEJ | Oct 4, 2007 11:44:47 AM

Any one actually know the basis West used to get his old convictions tossed? Does Mass. have an open-ended procedure for challenging prior convictions? Maybe I'm wrong, but I think it would be fairly difficult to have an Ohio conviction vacated by the trial court six years after it was imposed -- I think you would need to show you were unavoidably prevented from discovering the new evidence you rely on or that a new retroactive law affects you. Any idea if Mass. has something similar?

Posted by: JustClerk | Oct 4, 2007 12:29:24 PM

Ah, but in the brave new world of Abuse of Discretion that all you Guideline haters endorse the Judge can vary upwards to reflect the conduct in the vacated conviction.

Posted by: dweedle | Oct 4, 2007 12:55:53 PM

In Boston you see once again the federal government is way out of control. Because they have the now advisory guidelines on their side if you don't cooperate they can try to slam you with a tremendously long unjust prison sentence. We need to give a federal judge the power to decide a persons life not an excel spreadsheet.

Posted by: | Oct 4, 2007 1:09:58 PM

JustClerk, In general, the answer is “Yes.” (I don't want to go into the technical details in public, because it gets people worked up over a system that I think took a lot of effort by a lot of people to create.)

There are a few First Circuit decisions dealing with this issue, but the facts (and timing) were more in favor of the federal government, so the federal government didn’t complaint, and in fact “benefitted.”*

*Benefitted means “filled the jails faster.”

Posted by: S.cotus | Oct 4, 2007 1:47:44 PM

Well, dweedle, I am not a Guideline hater. I'm one how hates irrational, large-for-the-sake-of-large, and unreasoned sentences. In fact, the Guidelines often produce quite appropriate sentences; but in this case, they wouldn't if you included the prior conviction.

In essence, while the advisory Guidelines give the judge the ability to "reflect the conduct in the vacated conviction," the system now also allows for her to look to the offense of conviction and the conduct underlying the prior conviction to determine if the extreme (10x) sentencing enhancement is appropriate in this case.

Posted by: DEJ | Oct 4, 2007 3:38:56 PM


Not necessarily. I am not pronouncing a personal position on this particular matter one way or the other, but there is still an argument that a vacated state conviction is an inappropriate consideration under 3553(a).

Posted by: JP Davis | Oct 4, 2007 3:46:45 PM

DEJ: Stop electing a Congress filled with mandatory minimum-loving morons that pander to the lowest common denominator then. The guidelines only reflect the laws Congress passes. Congress reflects the will of the (dumb) people of the USA. Plain and simple.

JP: Two things. First, in practical terms a judge is more likely to pass an upward variance through the Circuits and the USSC's data from '06 reflects that. Second, I think you can easily make a 3553(a)(1)&(6) argument regarding prior conduct. The statute uses the terms "record" and "history" which are broader than "conviction".

Posted by: dweedle | Oct 4, 2007 4:45:26 PM

In no way do the Guidelines "only reflect the laws Congress passes." Certainly, Congress indirectly approves of the USSC's work by inaction, and certainly USSC must enforce mandatory minimums. But most of the Commission's work (i.e. the Guidelines) are not mandated by Congress.

Posted by: DEJ | Oct 5, 2007 2:25:36 PM

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